Let's Face Facts: ACTA Is Called An 'Executive Agreement' To Change The Law With Less Hassle Than A Treaty

from the an-executive-agreement-is-a-treaty-without-oversight dept

When concern over ACTA secrecy started picking up a few months ago, one of the industry lobbyist talking points that floated out was "don't worry about ACTA, because it's not a 'treaty' but an 'executive agreement' and thus, it can't impact US law." An IP lawyer in our comments keeps making this point over and over again, and arguing that anyone who argues otherwise doesn't understand the Constitution. Of course, that's silly. In response to that guy in particular, I'd been doing more research to understand the real differences between a "treaty" and an "executive agreement" and realized that pretty much everyone (including people at the State Departement) admit that the only substantive differences is that you don't need 2/3 Senate approval for an executive agreement. Otherwise, in every way, it's just like a treaty. Basically, it's a way to end-run around a treaty that wouldn't get approval. I'd been meaning to write up something about this, but it looks like Andrew Moshirnia of the Citizen Media Law Project has beaten me to it and done an excellent job ripping apart the "but it's just an executive agreement" argument:

When lobbyists and the USTR insist that ACTA won't change laws very much, I feel like I'm taking crazy pills. Of course it changes the law, why else would it need to be negotiated in secret and why else would it attract so much industry attention and support....

Executive agreements essentially give the President a means to unilaterally control the foreign relations of the United States. Presidents have historically used accords with foreign nations to conclude international pacts without giving the Senate a meaningful opportunity to interfere. See The Destroyers for Bases Deal, Yalta, The Vietnam Peace Agreement of 1973.  The constitutionality of this tool is somewhat dubious: the Constitution does not mention executive agreements, nor do the framers discuss the concept in either the constitutional convention or the Federalist Papers. The judiciary has defended the use of congressional-executive agreements*, provided that these do not conflict with the Constitution. See Reid v. Covert, 354 U.S. 1 (1957).   But hopefully the Court would be more likely to strike down unilateral Executive Agreements. But see U.S. v. Pink 315 U. S.  203, 229 (1942). However, the prospect of an executive agreement is rarely an issue because the mere presence of an existing agreement places an incredible amount of pressure on Congress to go along with the deal.

There have been some congressional efforts to restrain the use of executive agreements and to reestablish the primacy of Congress' Treaty Power. In 1954, the Bricker and George Amendments, which would have restricted the president's power to craft executive agreements, failed to clear the Senate, the latter by only a single vote.

While the President has the power to utilize executive agreements, he is not to keep them secret. Eighteen years after the Bricker and George amendments barely failed, and only a few years after the discovery of covert executive agreements with Laos and South Korea, Congress passed the Case Act of 1972. The Act requires the Executive to disclose within 60 days the text of "any international agreement" in which the United States is involved. But this does little to redress the problem of unilateral executive agreements because presidents routinely ignore the statute.

Moshirnia then wonders if the massive unpopularity surrounding ACTA and the process will put renewed attention on this questionable practice of executive agreements:

So to sum up: I am terrified that ACTA is going to be as monstrous as I believe it to be and that the United States will join the agreement by executive fiat. But maybe some good will come out of this--maybe the deep unpopularity of ACTA (trust me, people want their Internet) will force Congress to finally reassert its long neglected Treaty Power and curtail the use of executive agreements. While the Congress has deferred to the President in matters of war, there is no need to maintain such deference if ACTA empowers national ISPs to sever domestic Internet connections. None of this worrying would be necessary if the administration would simply (1) make the ACTA negotiations public, and (2) agree to submit ACTA to the Senate for formal ratification as a treaty. The longer this remains secret, the more users will worry. 

Let your Senators and Representative know that this pointless secrecy is unacceptable. Perhaps your demand will inspire them (either through pride or fear) to reclaim their treaty power and back out of a deal to which they never agreed. 

And... the next time your friendly industry lobbyist insists that ACTA is "not a treaty" so you have nothing to worry about, go ahead and explain why that's incorrect.

Filed Under: acta, constitution, executive agreement, lobbyists, treaty

Once Again, Be Careful What You Wish For With Net Neutrality Once The Lobbyists Get Done With It

from the might-not-be-what-you-wanted dept

We've pointed this out in the past, but those who support regulations in favor of net neutrality should be careful. Once the lobbyists get done with them, any rules won't resemble what you think they should. The EFF is already up in arms over the fact that the proposed net neutrality rules would allow blocking BitTorrent, even though it was Comcast's blocking of BitTorrent that helped kick off the latest round of attention in net neutrality. That does seem a bit ironic... but, again, it shows that, just because you call something "net neutrality," it doesn't mean it is about a neutral network. With the entertainment industry redefining net neutrality to their own liking (i.e., so that file sharing can still be blocked), you can bet that other lobbyists (including the telcos) will work hard to redefine it to their liking as well.

Filed Under: copyright, lobbyists, net neutrality

This Is Why We Worry About Net Neutrality Regs: Loopholes For RIAA/MPAA

from the be-careful-what-you-wish-for dept

We've mentioned a bunch of times that while we support the concept of net neutrality (and think any ISP that goes away from it is making a big, big mistake) we're quite worried about the unintended consequences of having it put into law. As a perfect example of why we should be worried, the EFF is putting together a petition to protest the "copyright loophole" that's already in the proposed FCC rules:

Buried in the FCC's rules is a deeply problematic loophole. Open Internet principles, the FCC writes, "do not... apply to activities such as the unlawful distribution of copyrighted works."

For years, the entertainment industry has used that innocent-sounding phrase -- "unlawful distribution of copyrighted works" -- to pressure Internet service providers around the world to act as copyright cops -- to surveil the Internet for supposed copyright violations, and then censor or punish the accused users.

From the beginning, a central goal of the Net Neutrality movement has been to prevent corporations from interfering with the Internet in this way -- so why does the FCC's version of Net Neutrality specifically allow them to do so?

This is what we worry about. It's great that the EFF is catching this particular loophole, but as more lobbyists get their hands on net neutrality regulations, they're going to slip in more and more loopholes like this that will turn what may have great intentions into something else entirely.

Filed Under: copyright, lobbyists, loopholes, net neutrality, petition, regulations
Companies: eff, riaa

Chile Rejects Attempt To Force ISPs To Filter And Block Copyrighted Works

from the sorry,-that's-a-no dept

While some other countries have caved to pressure from the entertainment industry and US diplomats to implement ridiculously draconian copyright laws, it's always nice to hear of some pushing back. Nicolas A. Barriga points us to the news that despite several attempts by Chile's president to pass extremely draconian copyright laws, that would force ISPs to actively police their networks and block access to content that was accused (not proven) of being infringement, the provision was definitively rejected (Google translation of the original). Apparently, it was rejected in such a way that the President can no longer re-introduce it.

What's interesting here (beyond a victory for user rights) is that a big part of the argument pushed by the entertainment industry representatives, was that this law was necessary to remain in compliance with trade agreements (there they are again) with the US. However, it appears that Chilean politicians recognized this was a load of bunk. Nothing in their trade obligations required such a solution. This sound similar to pressure put on countries like Canada and Israel, where they're told they need to introduce copyright laws well beyond anything in the US just to live up to their international obligations. So far, both Canada and Israel have pushed back, and it's good to see Chile doing so as well.

Filed Under: chile, copyright, filters, isps, lobbyists

Hungarian Copyright Treaty Author Insists That Those Who Don't Like Anti-Circumvention Clauses Are 'Hatred-Driven' Maoists

from the ah,-language-choices dept

For nearly all of the history of copyright law, the law itself has been designed by and for a certain group of middlemen -- even as it was officially supposed to be about creating incentives for the creation of new, quality content. For this reason, copyright law has changed radically over the past three centuries, as those middlemen repeatedly strove to ratchet up and increase their monopoly rents. However, with the introduction of the internet and the personal computer, something unfortunate happened to the middlemen. They discovered that suddenly this cozy process of middlemen and politicians constantly ratcheting up monopoly protections ran into a bit of a speedbump: that ratcheting up interfered with the daily lives of millions of people online.

Because of that, over the past few years, a growing group of people have become increasingly vocal, in pointing out that the true purpose of copyright law should be to make sure it actually does increase the incentives for the creation of new works, rather than taking it on faith (and the sworn word of the middlemen). This has upset the middlemen greatly -- for historically they faced little to no opposition to their ongoing efforts to continually increase the monopoly rights granted to them.

Now facing serious opposition to these efforts for the first time, it appears that some of those involved in the cozy process of constantly ratcheting up copyright law (in one direction only) have decided that rather than present evidence as to why this is actually needed, they will simply break out two favorite mechanisms of the copyright maximalist arsenal: scream about "international obligations" over and over again... and when that fails, start the name calling.

Both are evident in an angry rant from Dr. Mihaly Ficsor, the President of the Hungarian Copyright Experts Council, and a former Assistant Director General of WIPO (i.e., the "old boys club" of folks who ratchet up copyright at every turn possible, based on faith alone, but not evidence of its need). Dr. Ficsor is particularly peeved at Michael Geist, for pushing back on the demands of other countries to radically change Canada's copyright laws. Dr. Fiscor's rant was posted to the blog of Barry Sookman, a Canadian copyright lawyer and lobbyist for the recording industry who has been a strong defender of secretive processes like ACTA negotiations and other attempts to change Canadian copyright laws on the whims of foreign middlemen, rather than any evidence of necessity.

I had thought that perhaps Dr. Ficsor's response would raise substantive issues concerning changes to copyright law, or perhaps (and this would be wonderful) present the actual evidence of why such changes are necessary. Tragically, there is none of that. It is blind faith-based pronouncements instead -- insisting that it's necessary because it's necessary, and then falling back on the mantra of "international obligations" for pretty much every other issue. Even on the one claim that he makes which he insists is substantive (that, despite not clearly saying so, these treaties do in fact require anti-circumvention clauses), he seems to purposely misrepresent history, pretending that he didn't lose this battle over a decade ago already.

At the end, it moves on to the pure insult phase:

I am sure that the policy makers of Canada do not allow being misled and frightened by the noisy group of these "free-access" "revolutionaries" (I hope so since, here in the former "socialist" countries of Central and Eastern Europe, we have had quite bad experience of certain "free access" "revolutionary" collectivist systems constrained on us for several decades). I am sure that they will not let Canada to become an isolated hostage and victim of demagogue campaigns organized in the hatred-driven style of Maoist Guards as during that other brilliant "cultural revolution."

Now, if you're at all familiar with the Maoist Cultural Revolution, to compare that to those who are simply pushing for their own consumer rights on copyright issues or asking for actual evidence of the need for increasingly draconian copyright system changes, is downright ridiculous and insulting. No one is acting as a revolutionary, demanding "free access" or any sort of "Maoist" revolution. To make such a claim is pure ignorance. While some may disagree with the position Geist and others have taken, they have presented a position based on consumer and individual rights and an understanding of basic legal principles and economics. You can disagree with the conclusions, but to mischaracterize them in such a ridiculous manner raises all sorts of questions about what the copyright "old guard" has to hide. If they cannot respond to basic questions with actual evidence or actual answers, and instead resort to name calling like Dr. Ficsor does above, it seems only reasonable to conclude that there is no evidence to support their position. And when hundreds of thousands of Canadians spoke up to point out the emperor has no clothes, perhaps it's not surprising that the emperor would lash out in anger, but it simply demonstrates how the "faith-based" nature of those pushing for ever more stringent copyright laws means that they cannot engage in reasoned debate on a position that has no reason behind it.

Filed Under: canada, copyright, lobbyists, michael geist, mihaly ficsor, trade agreements, wipo

Looks Like Entertainment Industry Lobbyists Got To The Spanish Government

from the and-here-we-go-again dept

We had just been noting how Spanish courts seemed to be actually interpreting copyright law in a reasonable way, and slapping down industry attempts to abuse the laws. Of course, that couldn't last. It appears that Spain is now proposing new copyright laws that would bring its existing laws down the well-lobbied path of draconian punishment, increased third party liability and other mindless ideas that have more to do with propping up an old business model than encouraging the creation of new quality content. A bunch of professional content creators in Spain are organizing to protest these new rules, but do they stand a chance against the usual onslaught of industry lobbyists?

Filed Under: copyright, laws, lobbyists, spain

More ACTA Leaks; Still Looking Really Bad

from the sneaky,-sneaky dept

Yet again, despite all the secrecy and bogus claims of "national security," the details behind what's being proposed in ACTA have leaked, and they don't look good at all. It's basically an attempt to force the worst of the DMCA on much of the rest of the world, with a few carefully chosen modifications. While there are lots of issues, it's worth noting the most basic of all, found in the first paragraph that contains the "general obligations" of participating countries. As Michael Geist details:

These focus on "effective enforcement procedures" with expeditious remedies that deter further infringement. The wording is similar to TRIPs Article 41, however, the EU notes that unlike the international treaty provisions, there is no statement that procedures shall be fair, equitable, and/or proportionate. In other words, it seeks to remove some of the balance in the earlier treaties.

This is the sort of thing that you really have to watch out for in these types of agreements. The lobbyists for the entertainment industry are amazingly good at carefully selecting or omitting words that, to the casual observer, don't seem all that important. However, in the long-term, they can change the entire thrust of an agreement. By leaving out the requirement that enforcement be "fair, equitable and/or proportionate," it makes it much easier for the industry to push for more and more draconian enforcement measures under a typical game of leapfrog or "ratcheting," where they focus on getting one country that's agreed to ACTA to impose something draconian, and then insisting that everyone else has to follow through in the name of "harmonization." Be aware of these sorts of tricks as the Hollywood lawyers will waste little time in leaping forward with claims that these rules really aren't any different than what's already in place. Of course, if that were actually the case, they wouldn't be arguing so hard for these new rules. They know how to work the system.

The second paragraph is also a bit troubling, as it would require a contributory infringement setup, or an "inducement standard." The industry has been pushing for this for a while, and while it failed to get the INDUCE Act passed in the US, it effectively got close with the troubled ruling in the Grokster case, written by a Justice who clearly admitted to not understanding basic technology. The problem with any sort of inducement standard should be obvious (though, it seems like it's not to maximalists): you are creating a liability for someone based on the actions of others. That should always be seen as a bad idea. However, the entertainment industry loves it, because they would rather fight legal battles against a small number of file sharing services and sites, rather than the users of those service and sites.

Even worse, by "harmonizing" these sorts of things via international treaty, we are left in the same troubled position we are on other similar treaties like Berne and TRIPS, whereby countries are locked into very specific rules on how intellectual property must work, and are unable to make serious and meaningful changes, based on their own knowledge of what works best to encourage and promote progress. Having a very small body of folks, heavily influenced by industry lobbyists, decide exactly what copyright laws must be does not allow for experimentation and actual knowledge of how these sorts of changes impact creative output. They're designed to hide the damage done by bad copyright law, rather than figure out a way to fix it.

Filed Under: acta, consumer rights, copyright, counterfeiting, evidence, lobbyists, privacy, secrecy

Entertainment Industry: Yes, Please Keep Negotiating Secret Copyright Treaty To Save Our Asses

from the yeah,-that's-convincing dept

Sherwin Siy (one of the few people who actually was allowed to glance briefly at parts of the proposed ACTA treaty, though under strict NDA) has written about yet another letter sent by the entertainment industry to the government in support of ACTA. This letter includes pretty much everyone who benefits from abusing copyright laws and is afraid of the internet:

Advertising Photographers of America
American Association of Independent Music (A2IM)
American Federation of Television and Radio Artists (AFTRA)
American Society of Composers, Authors and Publishers (ASCAP)
American Society of Media Photographers, Inc. (ASMP)
Association of American Publishers (AAP)
Broadcast Music, Inc (BMI)
Commercial Photographers International
Directors Guild of America (DGA)
Evidence Photographers International Council
Independent Film and Television Alliance (IFTA)
International Alliance of Theatrical Stage Employees (IATSE)
Motion Picture Association of America, Inc. (MPAA)
National Music Publishers Association (NMPA)
NBC Universal
News Corporation
Picture Archive Council of America (PACA)
Professional Photographers of America (PPA)
Recording Industry Association of America (RIAA)
Reed Elsevier Inc.
Society of Sport & Event Photographers
Software & Information Industry Association (SIIA)
Stock Artists Alliance
Student Photographic Society
The Advertising Photographers of America
The Walt Disney Company
Time Warner, Inc.
Universal Music Group
Viacom Inc.
Warner Music Group

Funny... isn't it, that all these companies and industry groups are supporting a deal that no one's seen yet? Oh wait... that's because many of them have seen it and actually have had a hand in creating it. But what's really damning is that no where in the letter do they explain why this is actually needed or how it will do anything valuable. Instead, it's a pure faith-based letter saying "if you pass this secret treaty, good things will happen." I don't know about you, but generally, I prefer there to be actual proof and evidence that restricting consumer rights around the world actually leads to some sort of real benefit.

Tellingly, they don't respond to any of the points we raised earlier. This is not a treaty to help people or the economy. It's a deal to try to sneak through a system for propping up an obsolete business model by companies who don't want to adapt.

Filed Under: acta, copyright, counterfeiting, evidence, lobbyists, secrecy
Companies: a2im, aap, aftra, ascap, asmp, bmi, disney, gda, iatse, ifta, mpaa, nbc universal, news corp., nmpa, paca, ppa, reed elsevier, riaa, siia, time warner, viacom, warner music group

No, ACTA Secrecy Is Not 'Normal' -- Nor Is It A 'Distraction'

from the don't-make-us-laugh dept

Over the last few weeks people who are actually concerned about individual rights have done a decent job sounding the alarm about the problems with what little we've seen of the ACTA negotiations. In the last week or so, those who work for the entertainment industry have suddenly started scrambling to respond, after realizing that more and more people are starting to pay attention and to worry about ACTA. However, it's been pretty funny to watch the desperate attempts by industry lawyers to try to paint this all as much ado about nothing (with gratuitous swipes at those of us who have called attention to what's going on).

One of the points they make is to say that the "secrecy" is no big deal, because it's "normal" for such negotiations to happen this way. This was what the USTR stated earlier this year when the question was raised, but unfortunately, the facts (and common sense) simply don't support that claim at all. If you look at the transparency level on many other international agreements, including well known ones concerning WTO, WIPO, WHO, UNCITRAL, UNIDROIT, UNCTAD, OECD, Hague Conference on Private International Law and many others, you see that they are significantly more transparent and/or have clear procedures in place for concerned parties to take part in the discussions. That is not the case with ACTA.

A second point they make is that if the end result is really bad, countries can simply decide not to sign it and not to participate. Yes, stop laughing. It's as if they think that we're all idiots who haven't seen how lobbyists have historically relied on the line "but we must live up to our international obligations" to push through all sorts of laws the public does not support.

A third point raised is that this isn't a "treaty" but a "sole executive agreement," so we shouldn't worry since it can't change the law. Except, by categorizing it as such, it's actually a loophole that could potentially take Congress out of the process of reviewing or approving anything that's in the agreement, and then just wait for the "but we must live up to our international obligations" to start pouring out of lobbyists and industry lawyers' mouths.

A fourth point of attack is that some of the descriptions of what's being discussed are inaccurate. Well that's funny since a big part of the problem is that we're not even being shown what's being discussed. So, yes, as we've been clear, this is an ongoing negotiation, and the final results may differ from what bits and pieces have been leaked. But, what is leaked has suggested that some very, very bad things are at least on the table, and making that clear and opening up the discussion is important, no matter how much the lawyers don't want anyone interfering. Separately, as you would expect, some of the language used to date in the leaked reports suggests the usual legal games are being played, so that when people point to something and say that opens us up to a bad thing, the lawyers can say "oh, that's no different than what we have already." Just like the RIAA did back when they wiped out musicians rights to reclaim their music (thankfully, only temporarily). But if you actually understand the details, you know that the subtle language choices are all chosen very carefully to drive future legislation. You can see this by simply monitoring what's happening in South Korea now, since that's what the new agreement is supposedly "modeled" on. And, it's not pretty. Various user-generated content sites are severely limiting what users can do, to the point that they're barely recognizable as UGC sites any more. Liability pointed at service providers are scaring them into massive limitations. That's not the sort of world most of us want to live in.

Finally, the ACTA supporters claim that because the administration showed a very small group of consumer rights folks, such as Public Knowledge, a draft of the document, that consumer groups are "a part of the process." That doesn't take into account the level of access. Whereby industry lobbyists had a large hand in drafting ideas and suggestions for parts of the legislation, a Public Knowledge representative was involved on "very short notice" in an initial hour-long meeting whereby they were allowed to look at the text, but not copy it, and then a further short discussion about a revised copy -- but the process included NDAs that prevent much discussion about what was seen. That's not serious involvement.

Finally, as I was writing this, Jamie Love pointed out that the MPAA has sent a letter in favor of ACTA, which is chock full of laughter inducing falsehoods (such as claiming the entire motion picture industry is at risk, even as it's having its best year ever). But the most ridiculous is this:

"Outcries on the lack of transparency in the ACTA negotiations are distraction."

Yes, that's right, making sure that the public knows what the hell its government is signing up for is a "distraction." Could the MPAA's lawyers be any more obvious in brushing off the concerns of the public than by calling it "a distraction." To the MPAA this is all about propping up its business model and stopping competition from online sources. The public doesn't matter. As Jamie Love notes, "transparency isn't a 'distraction.' it is an obligation of governments, to those it wants to govern."

So, yes, perhaps some of the discussion has suggested things that will go beyond what's actually in the document, but it's hilarious to see industry lawyers suggest that those concerned about our rights are "creating a moral panic" when the only reason there's concern at all is because the public is not even allowed to see what's being discussed. Want to end the rampant speculation? Release the documents and let the public take part in the process. The MPAA's letter and the sudden whining from industry lawyers shows what this really is: yet another attempt by one particular industry that refuses to adapt to a changing marketplace, looking to governments to prop up their existing business model at the expense of innovation, consumer rights and upstart competitors.

Filed Under: acta, copyright, counterfeiting, lobbyists, secrecy
Companies: mpaa

The Lobbyists' Ability To Control The Message

from the we-say-what-they-want dept

It certainly won't come as much of a surprise to readers around here that lobbyists from Roche/Genentech were able to get 42 different members of Congress to include text they had written into the Congressional Record. For way too long, we've seen how much politicians seem to rely on lobbyists to write the legislation, create the talking points and (at times) even deferring questions to the lobbyists themselves. Is it any wonder that lobbyists have become the new celebrities?

But what is rather stunning about the NY Times story on how Genentech's talking points were mentioned (with multiple Congressional reps using the exact same language) is how unconcerned everyone is about it. The lobbyists wrote up talking points for both sides of the aisle. It wasn't about being in support or against the current healthcare bill, but just to get these Congressional Reps "on the record" in supporting key concepts, so that those same lobbyists can go back and point to such "bipartisan" support in the future, even if the Congressional reps themselves don't even know what they're talking about.

The NY Times talked to a bunch of Congressional offices about this, and they all seem to admit freely that the language came from Genentech lobbyists, and they incorporated it directly (sometimes with a few minor changes) into the remarks that get put into the Congressional record. This isn't the fault of Genentech or its lobbyists -- who, of course, are going to push for such things. The really damning part is that all of these Congressional reps don't seem to think there's any problem at all with simply taking text directly from a company and putting it into their own remarks as if they agree on the concept, when they don't even seem to understand what they're saying half of the time. Often these sorts of Congressional remarks are later used to show "Congress' intent" in doing certain things. But, perhaps they should just start being upfront and honest about the fact that these remarks are "the industry's intent" and simply signing them with the companies that actually wrote the language (or at least tagging the remarks with the name of the company/industry group that wrote it).

Filed Under: congress, health care, lobbyists
Companies: genentech, roche